Effective date May 14th, 2019
These GENERAL TERMS AND CONDITIONS FOR THE SUBSCRIPTION TO SMU OS SERVICES consist of the following sections:
INDEX
- Definitions.
- Services.
- Authorizations and Customer Restrictions.
- Customer Obligations.
- Service Levels.
- Security.
- Confidentiality.
- Termination and Suspension of Services.
- Invoicing, Payments and Taxes.
- Intellectual Property Rights.
- Indemnification.
- Limitation of Liability.
- Miscellaneous Provisions.
1.1 . Definitions. Any capitalized terms under these Terms and Conditions shall have the following meanings:
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Affiliate” or “Affiliates” shall mean, with respect to any person, any other person that controls or is controlled by or under common control with such person; but only so long as such control exists. For the purposes of this definition, “person” means any individual, corporation, partnership, or limited liability company; and “control,” means ownership of at least fifty percent (50%) of the voting stock, shares or other equity interest in the controlled person and possession of the power to direct or cause the direction of the management and policies of the controlled person.
“Agreement” means the SMU OS Subscription Agreement signed by the Customer.
“Authorized Users” means all employees and agents of Customer that have been duly authorized by Customer to access to the Products.
“Additional Users Fee” means the fee Company will monthly charge Customer, in addition to the Monthly Subscription Fee, for each Authorized Users exceeding the Included Users amount.
“Company” is the person or entity identified as Company under the Agreement.
“Company Materials” means the Products, the Documentation and the Company Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by the Company or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or the Company Systems.
“Customer” is the person or entity identified as Customer under the Agreement.
“Customer Data” the data inputted by the Customer, Authorized Users, or the Company on the Customer’s behalf for the purpose of customizing, using or facilitating the Customer’s use of the Services and/or Products.
“Customization Services” means any customization required to represent the values of Customer’s culture.
“Documentation” shall mean the documentation applicable to the Services and/or each Product provided by the Company or included in https://os.starmeup.com/en/documentation-applicable-to-the-services which sets out a description of the Products.
“Hosted Services” means those services required to host, manage, customize, operate and maintain the Products for remote electronic access and/or use by Customer and its Authorized Users.
“Included Users” shall mean the maximum number of Users included in the Monthly Subscription Fee.
“Indemnitee” means the Party seeking indemnification from the other Party.
“Indemnitor” means the Party required to indemnify the other Party.
“Initial Term” shall mean the term determined under the Agreement for which the full payment of the Monthly Subscription Fees is guaranteed by the Customer.
“Internal Use” means use of the Products by the Authorized Users in Customer’s internal operations but does not include use of the Products by, or use of the Products in the provisions of services to, the Customer’s clients. Use of the Products (or any part thereof) for the benefit of others, whether by means of a software as a service agreement, service bureau application, application service provider, outsourcing or other means of providing service to any third party or that has the purpose of directly producing revenue to the Customer shall not be considered Internal Use.
“Invoice” means any invoice sent by the Company to the Customer in relation to any fees payable under the Agreement.
“Monthly Subscription Fee” Shall mean the monthly fee set forth in the Agreement that Company will charge Customer for any Product(s) and/or Services agreed thereunder.
“Price” means the Monthly Subscription Fee plus the Additional Users Fee.
“Privacy Policy” means the policy located at https://os.starmeup.com/en/privacy-policy-en/, that explains how Company collects, uses, shares and protects Customer Data.
“Products” means any Company’s Intellectual Property subscribed by the Client under the Agreement, included but not limited to StarMeUp, BetterMe, BeThere, BriefMe and TakePart, as well as any other application, software, ancillary data files, modules, libraries, tutorial or demonstration programs or other components and all new versions, updates, revisions, improvements and modifications of the foregoing, developed and/or published by Globant from time to time.
“Section” means each of the different sections of these Terms and Conditions, as detailed in the index.
“Service” or “Services” means the personalized service that allows the Customer to access to the Products determined in the Agreement, and customized as agreed by the Parties.
“Service Period” means each calendar month.
“Start Date” is the date when the access to the Products is granted, as determined in the Agreement.
“Subcontractors” means any Affiliates of the Company or third parties hired by the Company to partially or totally provide or assist in the provision of one or more services.
“Systems” means a Party’s’ information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by that Party or through the use of third-party services.
“Term” shall mean the period during which the Agreement is ongoing, effective as of the Start Date and until the expiration of the Initial Term or any renewal, or the early termination of the Agreement in the terms of Section 8 of these Terms and Conditions.
“Terms and Conditions” shall mean this document, which is considered accepted by the Customer upon the sign off of the Agreement.
“Trademarks” means any trademarks or trade names owned or used by the Company, whether registered or not, including, without limitation, the trademark Globant™, the names StarMeUp, Stellar, BetterMe, BeThere, BriefMe, TakePart and any other trademarks, service marks, trade names, corporate names, trade dress, logos, designs, fictitious business names and any other source or business identifiers, now existing or hereafter adopted or acquired by the Company.
“Virus” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent Customer or any Authorized User from accessing to the Product or using the Hosted Services as intended by the Agreement.
“Website” https://os.starmeup.com/en/
2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the Agreement and these Terms and Conditions, during the Term, the Company shall provide Customer and its Authorized Users with access to the Products determined in the Agreement, these Terms and Conditions, any Customization Services and/or Hosted Services, in substantial conformity with the Documentation.
2.2 Services and Systems’ control. Except as otherwise expressly provided in the Agreement, as between the Parties:
(a) the Company has and will retain sole control over the operation,provision, maintenance and management of the Services, the Products, the Customization Services and the Hosted Services, including the: (i) Company’s Systems; (ii) location(s) where any of the Services, Customization Services or Hosted Services are performed, including in the United States, in countries outside the United States, or outside the borders of the country in which Customer or the Customer Systems are located; (iii) selection, deployment, modification and replacement of the Products; and (iv) performance of support services and service maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer´s systems, and sole responsibility for all access to and use of the Products by any person through or by the Customer´s systems or any other means controlled by the Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or the Company in relation to the Agreement; (ii) results obtained from any use of the Products; and (iii) conclusions, decisions or actions based on such use.
2.3. Changes. The Company reserves the right, in its sole discretion, to make any changes to the Products or the Company Systems that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Company’s services to its customers, (ii) the competitive strength of or market for the Company’s Products and services or (iii) the Products’ and/or Services’ cost efficiency or performance; or (b) to comply with applicable law.
2.4. Subcontractors. Company may from time to time in its discretion engage with Subcontractors, at Company’s sole responsibility, to perform all or part of the Customization Services or Hosted Services.
2.5. Terms of Use. Authorized Users shall be bound by the Terms of Use available at the Website (https://os.starmeup.com/en/terms-of-use/). Customer shall also abide by the Terms of Use and be responsible before the Company for any damages caused by any breach by a Customer representative, or any of its Authorized Users. The Company reserves the right to change the Terms of Use any time at its sole discretion. The Company will inform administrator user of the Customer in connection with the changes in these Terms and Conditions. The Customer shall inform the Authorized Users of the change of the content of the notification to be sent to the Authorized Users.
2.6. Changes to the Terms of Use. The Company reserves the right to change the Terms of Use any time at its sole discretion. When this occurred, the Company will provide a ten (10) business days prior notice (the “Acceptance Term”) to the administrator user of the Customer, informing any changes to the Terms of Use. If the Customer has not notified its intention to terminate the Agreement in the terms of section 8.1 during such Acceptance Term, any changes to the Terms of Use shall be deemed accepted and the Customer shall inform the Authorized Users of such changes.
2.7. Use of Services and Company Materials. The Services and the Company Materials, as well as any access to the Products or any other rights granted under the Agreement are for non-commercial Internal Use only and may not be used for any different purposes. During the Term the Company grants the Customer a limited, non-exclusive, non-transferable right to access the Services and the Company Materials, as well as any Documentation. Except for the foregoing, no right, title or interest shall be transferred to the Customer. The Customer agrees not to use the service for public performances.
2.8. Access to the Products and Services. The Customer recognizes that the use of the Services and the access to the Products required the Customer and any Authorized users to maintain at its sole expense the technical hardware and software requirements detailed in the Website (https://os.starmeup.com/en/technical-software-requirements).
3. AUTHORIZATION AND CUSTOMER RESTRICTIONS.
3.1. Authorization. Subject and conditioned to Customer’s and any Authorized Users’ compliance and performance in accordance with these Terms and Conditions and the Agreement, the Company hereby authorizes Customer to access and use, solely during the Term, the Products and such documentation as the Company may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Documentation, and the conditions and limitations set forth in the Agreement. This authorization is non-exclusive and non-transferable.
3.2. Reservation of Rights. Nothing in the Agreement or these Terms and Conditions grants any right, title or interest in or to (including any license under) any Intellectual Property Rights (in the terms of Section 10) in or relating to, the Services, the Software or the Company Materials, whether expressly, by implication, estoppel or otherwise. Any right, title and interest in and to the Products and the Company Materials is and will remain with the Company.
3.3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to access or use the Services, the Products or the Company Materials except as expressly permitted by the Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as the Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services, the Products or the Company Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services, the Products or the Company Materials to any person other than the Authorized Users and as defined in the Agreement, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, the Products or the Company Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or the Company Materials or access or use the Services, the Products or the Company Materials other than by an Authorized User through the use of their own and valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services, Products or the Company´s Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Virus;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Products, the Company´s Systems or the Company’s provision of services to the Customer or to any third party, in whole or in part;
(g) remove, delete, alter or obscure any Trademarks, the Company Materials, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, the Software or the Company Materials, including any copy thereof;
(h) access or use the Services, the Products or the Company Materials in any manner other than the Permitted Use;
(i) access or use the Services, the Products or the Company Systems or the Company Materials for purposes of competitive analysis of the Services, Systems or the Company Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage;
(k) access or use the Services, the Products or the Company Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(l) otherwise access or use the Services, the Software, the Company Systems or the Company Materials beyond the scope of the authorization granted under this Section 3.
4.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up and maintain in accordance with the Documentation all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as the Company may reasonably request to enable the Company to exercise its rights and perform its obligations under and in connection with the Agreement.
4.2. Effect of Customer Failure or Delay. The Company is not responsible or liable for any delay or failure of performance caused by or resulting from, in whole or in part by Customer’s delay in performing, or failure to perform, any of its material obligations under the Agreement associated thereto.
4.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Subsection 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and the Company Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify the Company of any such actual or threatened activity.
4.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services, Products and the Company Materials directly or indirectly by or through the Customer Systems or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.5. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
5.1. Service Levels. During the Term and subject to the Agreement, these Terms and Conditions and any applicable Documentation, the Company will use commercially reasonable efforts to make the Hosted Services available for Customer’s and Authorized Users access at least ninety-nine percent (99.5%) of the time as measured over the course of each Service Period, excluding unavailability as a result of any of the Exceptions described in the Agreement, these Terms and Conditions or any Documentation.
5.2. Exceptions to the Service Levels. The following are “Exceptions” to the service levels assumed in Subsection 5.1, and neither the Hosted Services will be considered un-available nor any obligations under the Agreement breached when the impairment to access to the Services or the Products resulted, in whole or in part, from any: (a) act or omission by Customer or any Authorized User access to or use of the Hosted Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with the Agreement, these Terms of Use and the Documentation; (b) Customer failure or delay in the terms of Subsection 4.2; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event in the terms of Subsection 13.9; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by the Company pursuant to the Agreement; (f) scheduled downtime in the terms of Subsection 5.3; or (g) disabling, suspension or termination of the Services pursuant to Subsection 8.2.
5.3. Scheduled Downtime. The Company will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services between midnight and 06:00 a.m. (Eastern Time); and (b) give Customer at least 24 hours’ prior notice of all scheduled outages of the Hosted Services.
5.4. Service Support. The Services include the Company’s standard customer support services in accordance with the Company service support schedule then in effect, which is available at the Website (https://os.starmeup.com/en/support-sla/) and may be amended the Company from time to time in its sole discretion.
6.1. The Company Systems and Security Obligations. The Company will employ security measures in accordance with the Company’s Privacy Policy as amended from time to time, a current copy of which is available on the Website or a successor website address.
6.2. Data Breach Procedures. The Company maintains a data breach plan in accordance with the criteria set forth in the Company’s Privacy Policy and shall implement the procedures required under such data breach plan on the occurrence of a data breach.
6.3. Data Protection. The Parties recognize that each Party shall be the sole responsible and agrees to comply with the obligations applicable to such Party under the current legislation on the protection of personal data. The parties agree that, any Authorized User subject to the terms of any Data Privacy regulation will be subject to the appendix contained in https://os.starmeup.com/en/personal-data-processing-appendix/.
7.1. “Confidential Information” shall mean any and all information concerning the business or property of the disclosing Party including (a) information relating to the disclosing Party’s technology, products, and services, including, without limitation, technical data, patent, copyright, trade secret, proprietary information, know-how, ideas or concepts, software, inventions, techniques, sketches, designs, drawings, models, processes, developments, apparatus, equipment, algorithms, formulas, software programs, software source documents; and (b) information relating to disclosing Party’s operations, business, financial plans and strategies, including, but not limited to, customers information, markets, financial statements, projections, pricing, marketing, and other strategic business plans or information, directly or indirectly disclosed by the disclosing Party to the recipient Party, whether orally or visually.
Confidential Information shall not include: (i) information generally available to the public; (ii) information already in the possession of the Parties without restriction; (iii) information received by the Parties from a third party not in violation of an obligation of confidentiality; (iv) information developed independently by the Parties without reference to any Confidential Information; (v) information which is the subject of any written consent of the Party authorizing disclosure; or (vi) information which is required to be disclosed pursuant to applicable law or legal process, provided that a Party shall notify the other Party so that it can take steps to prevent or limit its disclosure.
7.2. Use of Information. Neither Party nor its Affiliates will be given any right, title, interest or license in or to any Confidential Information except as provided in these Terms and Conditions. Both Parties agree to (a) hold any Confidential Information in strict confidence and to use or disclose the Confidential Information only as is required for its performance under the Agreement; (b) disclose the Confidential Information to only those of its employees, Affiliates, agents or Subcontractors who require such disclosure in order to perform under the Agreement; and (c) protect the Confidential Information that is in its possession or control using at least the same means it uses to protect its own confidential and proprietary information, but in any event, not less than reasonable means. Each Party shall be responsible for any breaches of this Section 7 by its officers, employees, Affiliates, agents or Subcontractors. Each Party, upon the request of the other Party or, at the latest, upon completion of its performance under the Agreement, will either certify the destruction of the Confidential Information in its possession or return such Confidential Information in its entirety to such other Party, at its discretion.
7.3. Prior Confidential Information. To the extent the parties have exchanged any Confidential Information prior to the execution of the Agreement, the confidentiality obligations in these Terms and Conditions shall be applicable to such Confidential Information.
8. TERMINATION AND SUSPENSION OF SERVICES
8.1. Termination. The Customer may terminate the Agreement at any time and without cause by providing the Company with thirty (30) days prior written notice to the Company’s business address stated in the Agreement.
8.2. Effect of Expiration or Termination. Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) the Company shall immediately cease all use of any Customer Data;
(c) Customer shall immediately cease all use of any Services, Products, the Company Materials and Company Systems;
(d) if Customer terminates the Agreement pursuant to Subsection 8.1, at any time after the Initial Term, Company will be entitled to charge the Customer with the Monthly Subscription Fee attributable to the corresponding calendar month of the effective date of termination; and
(e) the Company may disable all Customer and Authorized User access to the Hosted Services and the Company Materials.
8.3. Suspension or termination of Services. The Company may, directly or indirectly, by any lawful means, suspend, terminate or otherwise deny Customer’ and/or any Authorized User’s access to or use of all or any part of the Products, without incurring in any obligation or liability, if: (a) the Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) the Company believes, in its good faith and reasonable sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of the Agreement or these Terms and Conditions, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under the Agreement or these Terms and Conditions, or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is or has been involved in any fraudulent, misleading or unlawful activities or becomes included in the sanctioned lists administered by the Office of Foreign Assets Control. This Subsection 8.3 does not limit any of the Company’s other rights or remedies, whether at law, in equity or under the Agreement. If at some point the Customer provided sufficient evidence to prove that Company’s understanding when proceeding to a suspension of Services under point “b)” wasn’t accurate, the provision of Services will be restored within 7 (seven) business days counted from the reception by the Company of such notice.
9. INVOICING, PAYMENT AND TAXES
9.1. Invoice. The Company will invoice the Customer as follows: (i) at the Start Date an Invoice corresponding to the aggregate amount of the Monthly Subscription Fees corresponding to the Initial Term; and (ii) upon completion of the Initial Term, at the beginning of each calendar month, the Monthly Subscription Fee corresponding to that month. Additionally, the Company will monthly Invoice the Customer the fees corresponding to any Authorized Users from the previous month that were not Included Users.
9.2. Payment. Customer shall pay the amount of any Invoice within thirty (30) days from receipt.
Any Invoice which has not been disputed in good faith within twenty-one (21) days from received shall be deemed accepted by the Customer. Company shall have the right to suspend or terminate any Services under the Agreement, without incurring in any fault or liability, upon Client’s failure to timely pay any non-disputed Invoices, until such payment is made in full.
To the extent permitted by the applicable law, and except as herein included, payments are non-refundable and the Company does not provide refunds or credits for any partial month periods or the Customer’s decision to stop using the Services or Products.
9.3. Taxes. Each Party shall pay their own applicable federal, state and local taxes incurred in their performance under the Agreement. Customer acknowledges that VAT is not included in the Price’. Customer agrees to indemnify Company for any claim related to Customer’s failure to pay any applicable taxes.
10. INTELLECTUAL PROPERTY RIGHTS.
10.1. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
10.2. Company Intellectual Property. The Customer acknowledges and agrees that the Company and/or its licensors own all Intellectual Property Rights to the Company Materials and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, Trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Company Materials or the Documentation.
The Company confirms that it has all the rights in relation to the Company Materials and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
10.3. Customer Data. As between Customer and the Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in the Agreement.
The Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to the Company, its Subcontractors and the Company personnel as necessary to perform the Services; and (b) to the Company as are necessary to enforce the Agreement and exercise its rights and perform its obligations hereunder.
10.4. Trademarks. Except as granted hereunder or under any other agreement between the Parties, the Customer acknowledges and agrees that the Customer has no right or interest in or to any Trademarks. The Customer agrees that is shall not at any time alter any Trademarks or use Trademarks in a form other than in connection with the Services, as detailed under the Agreement and this Terms and Conditions. Any other use of the Trademarks will require the Company’s prior written consent.
11.1. Customer indemnification obligations. The Customer shall defend, indemnify and hold harmless the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, Products and/or Documentation in breach of the Agreement. Company shall provide reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer’s expense.
11.2. Company indemnification obligations. The Company shall, defend the Customer, its officers, directors and employees against any claim that the Products or Documentation infringes any patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that: (a) the Company is given prompt notice of any such claim; (b) the Customer provides reasonable co-operation to the Company in the defense and settlement of such claim, at the Company’s expense; and (c) the Company is given sole authority to defend or settle the claim.
In no event shall the Company, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the Company Materials or Documentation by anyone other than the Company; or (b) the Customer’s use of the Company Materials or Documentation in a manner contrary to the instructions given to the Customer by the Company; or (c) the Customer’s use of the Company Materials, Services or Documentation after notice of the alleged or actual infringement from the Company or any appropriate authority.
11.3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such Party believes it is entitled to be indemnified pursuant to this Section 11. The Indemnitee shall cooperate with the Indemnitor at the latter’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11 will not relieve the Indemnitor of its obligations hereunder except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11.4. Mitigation. If any of the Services or the Company Materials are, or in the Company’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or the Company Materials is enjoined or threatened to be enjoined, the Company may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and the Company Materials as contemplated by the Agreement; (b) modify or replace the Services and the Company Materials, in whole or in part, to seek to make the Services and the Company Materials (as so modified or replaced) non-infringing, while providing substantially equivalent features and functionality, in which case such modifications or replacements will constitute Services and the Company Materials, as applicable, under the Agreement; or (c) by written notice to Customer, terminate the Agreement with respect to all or part of the Services and the Company Materials, and require Customer to immediately cease any use of the Services and The Company Materials or any specified part or feature thereof. Any termination by the Company under the terms of this Subsection 11.4 shall give the Customer the right to receive a reimbursement of any prepaid fees corresponding to Services not provided as result of the termination.
11.5. Disclaimer. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND THE COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND THE COMPANY MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
12.1. EXCLUSION OF DAMAGES. EXCEPT FOR EITHER PARTY´S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR EITHER PARTY´S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE COMPANY´S OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED WARRANTY OR OTHER REMEDY.
12.2. CAP ON MONETARY LIABILITY. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR EITHER PARTY´S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES PAID OR PAYABLE UNDER THE AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.1. Non Sanctioned Status. Customer warrants that neither Customer nor any of its Affiliates, executive officers, directors or any individual, entity, or organization holding a material ownership or controlling interest in Customer is an individual, entity, or organization with whom the Company is prohibited from dealing by any United States law, regulation, or executive order, including, without limitation, names appearing on the U.S. Department of the Treasury’s Office of Foreign Assets Control’s (“OFAC”) and Specially Designated Nationals and Blocked Persons List (the “SDN List”). Further, Customer understands that if at any time during the term of the Agreement, Customer or any of its executive offices, directors or any individual, entity, or organization holding any ownership interest or controlling interest in Customer, is determined to be or for any reason becomes an individual, entity, or organization with whom the Company is prohibited from dealing in accordance to this clause, Customer shall give immediate written notice to the Company and the Company shall have the right to terminate the Agreement and the Hosted Services with immediate effect, without fault or liability. If the Company exercises the termination right described herein, Customer shall pay the Company for any Service provided prior to the effective date of the termination unless such payment is prohibited by law.
13.2. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, ALL SERVICES AND THE COMPANY MATERIALS ARE PROVIDED “AS IS” AND THE PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND THE PARTIES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE OR COMPLETELY ERROR FREE.
13.3. Binding Effect. The Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
13.4. Notices. All notices, requests, demands, consents, authorizations, claims, and other communications hereunder must be in writing and sent to the other party, at the address included in the Agreement.
A notice given under the Agreement must be: (a) in writing in the English language; (b) sent for the attention of the person, and to the address, fax number or email address given in the Agreement; and (c) delivered personally, sent by fax or email, sent by pre-paid first-class post, recorded delivery or registered post, or (If the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.
13.5. Assignment. Customer may not assign the Agreement or any of the rights granted to Customer hereby, unless Customer first obtains the written consent of the Company, except in conjunction with the sale of all or substantially all of the stock or assets of Customer.
13.6. Waiver. No Party shall be deemed to have waived any of its rights, powers or remedies under the Agreement unless such waiver is expressly set forth in a writing signed by the waiving party. No written waiver of any provision of the Agreement shall be deemed to be, or shall constitute, (i) a waiver of any other provision of the Agreement, whether or not similar, or (ii) a continuing or subsequent waiver of the same or another provision of the Agreement. The failure of either party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, will in no way be construed to be a present or future waiver of any such provisions, or in any way affect the validity of either party to enforce each and every such provision thereafter.
13.7. Severability. If any Section, Subsection or other provision of the Agreement, or the application of such Section, Subsection or provision, is held invalid, then the remainder of the Agreement, and the application of such Section, Subsection or provision to persons or circumstances other than those with respect to which it is held invalid, shall not in any way be affected or impaired thereby. In the event that any provision of the Agreement becomes or is declared by a court of competent jurisdiction or panel of arbitrators to be illegal, unenforceable or void, the Agreement shall continue in full force and effect without said provision. The Parties agree to negotiate in good faith a substitute valid and enforceable provision that most nearly effects the parties’ intent and to be bound by the mutually agreed substitute provision.
13.8. Force Majeure. The Company shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by a Force Majeure Event, provided that the Customer is notified of such an event and its expected duration.
“Force Majeure Event” means any acts, events, omissions or accidents beyond a Party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of a Party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Company or subcontractors.
13.9. Interpretation. In these Terms and Conditions: (a) any phrase introduced by the terms “including” or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms and they will be deemed to be followed by the words “without limitation”; (b) a reference to “writing” or “written” includes any non-transitory form of visible reproduction of words (including e-mail); (c) the Section’s headings of the Agreement will not affect the interpretation hereof; and (d) a reference to any document, includes a reference to the amendments to such document.
13.10. Order of Precedence. If there is any conflict between these Terms and Conditions and the terms of the Agreement, these Terms and Conditions shall prevail.